8.2 Formalities of Will Substitutes
In Maryland no statute imposes formalities to the execution of revocable trusts similar to those formalities that govern wills. Conversely, Florida statute states that the State will not recognize the validity of testamentary distribution from a revocable trust that lacks the formalities of a Florida will. Fla. Stat. § 689.05 (2006); see also Zuckerman v. Alter, 615 So. 2d 661, 663 (1993) (“In Florida, formalities for the conveyance of real property are similar to will execution formalities.”). Florida’s law can cause a problem for a revocable trust executed in Maryland without testamentary formality if the client becomes a resident of Florida later in life or is a resident of Florida under the income tax rules but maintains dual residency. Arguably, the Full Faith and Credit Clause, U.S. Const. art. IV, § 1, would require Florida to uphold a Maryland revocable trust executed without formalities provided it was valid under Maryland law. However, lawyers are advised to adhere to those rules governing will executions when creating revocable trusts for clients who maintain property in Florida.
New York State also requires will formalities or a notarized instrument for a valid revocable trust. See N.Y. Est. Powers & Trusts § 7-1.17 (Consol. 2006). Maryland law does not require revocable trusts to be notarized. However, it is general practice that such instruments are notarized to permit recordation among state land records if real estate is concerned.